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JANOW v. SCHWEITZER DIV. OF KIMBERLY-CLARK

November 13, 1980

Donald JANOW, Plaintiff,
v.
SCHWEITZER DIVISION OF KIMBERLY-CLARK, The United Paperworkers International Union, AFL-CIO, and The United Paperworkers International Union, Local # 1482, Defendants



The opinion of the court was delivered by: DEBEVOISE

Plaintiff Donald Janow brought this action against the Schweitzer Division of the Kimberly-Clark Corporation, the United Paperworkers International Union of the AFL-CIO and the United Paperworkers International Union Local # 1482. Plaintiff alleges that the defendant company wrongfully discharged him from employment and that the defendant unions refused to pursue his grievance to arbitration, in breach of their duty of fair representation. Jurisdiction lies under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and 28 U.S.C. § 1337.

The matter is now before the Court on defendants' joint motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendants argue that no genuine issue of material fact exists as to the unions' fair treatment of plaintiff in processing his grievance and that the duty of fair representation has not been breached as a matter of law. Defendants further argue that, absent such a breach by the union, the claim against the company must fail for lack of exhaustion of contractual remedies. Plaintiff has filed a cross-motion for summary judgment on the ground that he is entitled to arbitration of his claim by the terms of the collective bargaining agreement between the Schweitzer Division and the United Paperworkers International Union.

 In accordance with Rule 56(c), the Court has examined the pleadings, affidavits and exhibits, depositions and answers to interrogatories submitted by the parties. The following facts are substantially undisputed.

 Plaintiff was hired by the Schweitzer Division of the Kimberly-Clark Corporation in 1955 and served continuously at the company's Spotswood, New Jersey plant until his discharge in June, 1979. For the better part of his tenure, he held the position of "beaterman", or machine operator, in the Stock Prep Department. Prior to the incident which gave rise to this lawsuit, he had been disciplined by the company on only one occasion, some twenty-three years earlier, for sleeping on the job.

 On the morning of June 13, 1979, as he was leaving the plant after working the night shift, plaintiff was stopped by a security guard at the employees' exit. He was carrying a paper bag containing two salad bowls filled with HTH and a one-pound coffee can filled with HTH, dry chlorine utilized by the company in its paper manufacturing process. The guard searched plaintiff's parcels, discovered the HTH, and immediately called Ronald Johnson, the company's Employee Relations Manager.

 A meeting was convened forthwith at which plaintiff, Ronald Johnson, union local Vice-President Steven Mischler, Stock Prep Department Head Imthiaz Azeez, and Director of Security Joseph Longo were present. While plaintiff and defendants disagree as to some details of the meeting, they are in accord as to its substance. Plaintiff admitted that he had attempted to remove a small quantity of HTH from the plant without obtaining a parcel pass and that he was familiar with the rule requiring a parcel pass before taking company property. He argued, however, that the taking of HTH had once been condoned by the company and that it was still a widespread practice among both employees and supervisors. At the close of the meeting Johnson informed plaintiff that he would be suspended for two weeks pending further investigation.

 On the following day, June 14, 1979, union local Vice-President Steven Mischler met with the Spotswood plant Operations Supervisor, Gerald Vreeland, to argue against plaintiff's discharge. The Operations Supervisor, Mischler avers, "was adamant and stated that if the employee had violated Company policy against removal of property without authorization, there was no alternative to termination".

 On June 15, 1979, Employee Relations Manager Ronald Johnson called a second meeting, attended by plaintiff and representatives of both the company and the union local. At that meeting, Steven Mischler alleges, he "strongly urged that Janow be permitted to retain his job, and emphasized such factors as length of service, work record, as well as the fact that the Company and its employees were considered to be a family, and that discharge was inappropriate for a single misdeed". Plaintiff concedes that Mischler fought for him "like a demon" at this meeting as well as the earlier meeting on June 13. Despite Mischler's efforts, however, Johnson announced that plaintiff was to be discharged.

 Subsequent to plaintiff's discharge, Mischler discussed with him the possibility of instituting grievance procedures under the collective bargaining agreement between company and union. On June 27, 1979 a formal grievance was filed charging that discharge was too severe a penalty for plaintiff's offense and seeking reinstatement. Plaintiff was consulted about the form of the grievance and gave his approval.

 The procedure for settling grievances between Schweitzer Division employees and the company is outlined in Section 17 of the collective bargaining agreement entered into between the company and the United Paperworkers International Union on June 15, 1978, and consists of four steps. Step 1 requires the filing of a written grievance signed by the employee and submitted by the shop steward to the foreman, "who shall hold a meeting and answer the grievance within forty-eight (48) hours". If no solution is reached at Step 1, "there shall be a meeting between the Plant Manager and the Grievance Committee of the Union" within five days of Step 1's disposition, which constitutes Step 2. The Plant Manager is required to give his answer at this step within 72 hours.

 Under the agreement, the employee may not proceed automatically to the third step. "If the grievance is considered settled at Step 2, then the aggrieved employee must secure approval of the general membership of the Union in order to go to Step 3".

 After filing a written grievance in accordance with the agreement, Steven Mischler informed plaintiff that the union would seek waiver by the company of steps 1 and 2. Step 1, according to Mischler, is routinely waived in discharge cases, ostensibly because a company foreman has no authority to reinstate an employee and the meeting would be futile. The union sought waiver of Step 2, Mischler alleges, because it called for a meeting with Gerald Vreeland, Operations Manager of the plant, who "had already stated his opinion that termination was appropriate in the situation presented" and, therefore, it would expedite the grievance process to proceed directly to Step 3. The company agreed to waive Steps 1 and 2, and arrangements were made for a Step 3 meeting. No attempt was made to first poll the general membership of the union or otherwise secure its approval.

 The Step 3 meeting was held on July 11, 1979. Plaintiff was represented at the meeting by officials of both the local and international unions and the company was represented by John Philpott, Mill Manager. The union officials, particularly Steven Mischler, continued to vigorously protest plaintiff's discharge and plaintiff was permitted to speak on his own behalf. Shortly after the meeting, however, Mill Manager Philpott issued a brief decision stating the company's determination that plaintiff was aware of mill policy against removal of company property and upholding the discharge.

 Following the company's adverse determination at Step 3, union Vice-President Steven Mischler consulted with plaintiff by telephone about further steps to be taken in the grievance procedure. Mischler advised plaintiff that the union would seek an extension of the thirty-day requirement for submitting the grievance to arbitration because the union had no scheduled summer meetings and a vote of the union would be necessary before going to arbitration. *fn1" Accordingly, Mischler submitted a written request to the company for a 60-day extension, which the company promptly granted.

 During the first week in August, the Executive Board of the union local met to review the grievance filed on plaintiff's behalf. The Executive Board is comprised of the local's President, Vice-President, Recording Secretary, Treasurer, Financial Secretary, and Chief Shop Steward. According to the affidavit of Steven Mischler, who had succeeded to the local's presidency on July 27, 1979, the Executive Board considered the matter and voted to recommend against arbitration. The Board's vote, Mischler alleges, was based upon its determination that the company had sufficient evidence of plaintiff's wrongdoing to justify discharge. The Board notified plaintiff of its decision by letter dated August 8, 1979, which read as follows:

 
Grievance # S.P. 25 has been rejected for arbitration by your Union Executive Board. You now have the right to present the grievance to the union membership at the union hall September 4, 1979 at 7:30 P.M.

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